Natural Environment & Rural Communities - Standing Committee A

[Janet Anderson in the Chair]

Natural Environment and Rural Communities Bill

Clause 61 - Restriction on creation of new public rights of way

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Jim Knight: It is a pleasure to see you back in the Chair, Ms Anderson, because we are discussing a subject that I know is of great concern to your constituents.
The clause is the first of four that deal with the recording of certain public rights of way for mechanically propelled vehicles. An extensive public consultation exercise was published in December 2003—it was referred to this morning—on the use of mechanically propelled vehicles over rights of way, which listed more than 14,000 responses. After careful, balanced consideration, we set out the intention to legislate in our framework for action document in January and clauses 61 to 64 deliver that commitment.
The whole Committee agrees that there is a significant problem with irresponsible drivers and riders of vehicles churning up our rights of way in the countryside, and that is must be addressed. We heard the hon. Member for Banbury (Tony Baldry) talking about the Ridgeway this morning. It is one of the most celebrated—if that is the right word—trails which has suffered damage. All parties agree that the actions of those irresponsible people need to be addressed, which is what the clauses will do.
Clause 61 reflects proposal 3 of the Government proposal paper, relating to the rights that might be acquired in the future by virtue of the use of mechanically propelled vehicles on certain routes. At first sight, it appears to be the key clause in part 6 of the Bill. I would argue that clause 62, which deals with the main issue of historic rights, is the key clause. Clause 61 deals solely with the future acquisition of mechanically propelled vehicle rights—for example, during the period 2010 to 2030.
There is considerable ambiguity about the extent to which mechanically propelled vehicular rights can be acquired. For example, it is not clear whether use of a way by someone on a bicycle could give rise to a right of way for all vehicles, including those that are mechanically propelled, and the law would benefit from clarification on this point. Clearly, evidence of  bicycle use or use by other non-mechanically propelled vehicles should not give rise to rights for mechanically propelled vehicles in the future.
The Highways Act 1980 provides for the presumed dedication of a way as a highway after use by the public for a period of 20 years. Until a recent court judgment, it was always considered that the law would not countenance the creation of rights based on long use that was prohibited by statute. Since the offence of driving on a footpath or bridle way was introduced in the Road Traffic Act 1930, it has been considered that illegal use of a route by a mechanically propelled vehicle for a period of 20 years would not give rise to a vehicular right because the movements were illegal. However, since the judgment of the other place in Bakewell Management Limited v. Brandwood in April 2004, it now appears that use by mechanically propelled vehicles of a footpath or bridle way for 20 years, despite being illegal, may give rise to mechanically propelled vehicular rights in certain circumstances. That means that rights might be acquired in the future by deliberate illegal use of a footpath by a mechanically propelled vehicle, which is clearly unacceptable.
Of more concern are the wider implications of the Bakewell case in relation to historic public rights of way, which I shall come to when we consider the next clause. This clause will ensure that, post commencement, no new rights of way can be created by the use of mechanically propelled vehicles over any routes that were recorded or capable of being recorded as public rights of way on local authorities’ definitive maps.
I shall now try and address some of the points made in the debate on the clause, starting with the contribution made by my hon. Friend the Member for Bassetlaw (John Mann), who has been a robust champion of the need to resolve the matters in the clauses that we are discussing. He made a useful contribution this morning, and he yet again demonstrated his commitment to resolving those matters.
My interpretation of what my hon. Friend said suggests that most of the answer to his question will be in the debate about clause 62; however, it is worth responding to some of the questions that he raised about the process—assuming that we agree to clause 61—that is followed if riders want to set up a new trail. Given that thousands of trail bikes are being used, it is thought sensible to make provision for them to be ridden somewhere. Otherwise, we may inadvertently create an environment in which there is a great deal of illegal use of trail bikes. If people use their trail bikes illegally, they may go anywhere and destroy particularly sensitive environments, so there is a pragmatic argument for making some provision.
It is important to consider how provision might be made. The answer is through dedication by a landowner. The hon. Member for Brecon and Radnorshire (Mr. Williams), for example, may want to dedicate some of the land that he farms. However, it would be difficult, if not impossible, to establish a definitive map. I have just had a long and slightly  tortuous discussion with my officials about that point, and they advise me that the provision would not apply, as creating a new byway open to all traffic would require an assessment by the authority that the right of way was principally for horse riders or for walkers, and not for mechanically propelled vehicles, because then it would be a road. I am sure that that is clear.

John Mann: It sounds as though the rest of the Committee wants to concentrate on clause 62, but I see the main problems as being in clause 61. Is it not the case that if the Bill is passed unamended, trail riders or any other group who feel that they have lost any ability to create a new right, even when it is non-contentious, will be able to mount a legal challenge to the legislation? Through the legislation, someone must be able to say, “We think that this particular route is highly applicable for trail bikes and other motorised vehicles.” They must be able to do so in a way that means that the rest of the community can take a view on the matter, so that it can be appropriately determined.
My opposition to trail bikes, which arises from the problems in my constituency, is not an attempt to remove the right to ride them when there is agreement. I should like to see somewhere of an appropriate size designated for people properly to practise their sport, so that walkers, horse riders and others know that it would be particularly stupid to go there. I should like to see such balance and sense, but my fear is that the balance needed to allow all groups to have appropriate access is not provided for. That is why I question the Minister again about whether provision will be possible under clause 61.

Jim Knight: If one were to create a motor vehicular right of way, one would be creating a road. It might be untarmacked and it might be unadopted, but it would still be a road. We are talking about future rights, rather than rights in the past. The procedure that we would go through in any other circumstances in respect of creating a road would apply. The question of a legal challenge applies if we retrospectively remove rights. I am sure that we will discuss that, perhaps even in some detail, when we come to clause 62.
One other point was raised by my hon. Friend the Member for Bassetlaw and repeated articulately by my hon. Friend the Member for Bridgend (Mrs. Moon), who said that she was concerned about the ability to protect biodiversity and habitats, as the whole Committee has been throughout its discussions. Again, if we apply new criteria to people who apply to assert rights—even if we were talking about the future, they would still be applying to assert historic rights—we will be into the whole business of retrospectively changing people’s rights, which, as I have said, I will discuss in much more detail in the context of clause 62. I hope that that is helpful.
The hon. Member for Banbury understandably and rightly raised issues relating to the Ridgeway. The Ridgeway national trail extends from near Avebury in Wiltshire to Ivinghoe beacon in Buckinghamshire. Roughly a quarter of it is a byway open to all traffic, a  quarter is roads used as public paths and the rest is either bridleways, footpaths or quiet roads. It is widely agreed by all parties that there are long-established motor vehicular rights over roughly half of the Ridgeway so removing the historic rights, as we will be debating in relation to clause 62, does not solve many of the problems.
As with other national trails, the Ridgeway is managed by a group made up of the Countryside Agency and the local highway authorities through whose counties the trail runs. The previous Minister, my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), convened and chaired a series of meetings in the Palace of Westminster over a period of 18 months or so at which he encouraged the Ridgeway management group, led by the Countryside Agency, to develop a management plan to address the problems created by the use of vehicles on the Ridgeway. The plan comprised a mixture of traffic regulation orders and maintenance measures. The management plan is well under way and seems, so I am told, to be largely successful, since much of the controversy over the Ridgeway has subsided.
The hon. Member for Banbury has apologised that he is unable to be present this afternoon; he has to attend the Africa debate on the Floor of the House. I promised him that I would address his points so that he could read my reply later in Hansard. He has raised some concerns, so although some of the controversy that my Department was hearing about seems to have subsided, it clearly still exists in his constituency.
The use of traffic regulation orders will become important in resolving some of the problems on the Ridgeway and elsewhere where rights are asserted successfully and there remain problems in respect of damage to the environment by the use of mechanically-propelled vehicles.

John Mann: As I understand the Minister, he is saying that, if it was deemed appropriate, it would be highly appropriate for a local authority to use a traffic regulation order to prohibit motorised vehicles where their presence was regarded as unwelcome and that that kind of initiative, if it was felt locally appropriate, would have the endorsement—I do not mean specifically, but in terms of a methodology—of his Department.

Jim Knight: Obviously, the highways authorities would have to go through the necessary process, but subject to that, that would seem to be the effective local action. Indeed, in the example that we are using, the five local authorities that span the Ridgeway, or the Secretary of State, could make a traffic regulation order covering the entire length of the Ridgeway if that became necessary. However, they have in place a management plan that uses traffic regulation orders selectively on the most vulnerable sections. As I said, so far that seems to be having a good effect.

John Mann: Has the Minister had any discussions with the Home Office about whether it would be appropriate on the basis of countering crime and  disorder to use a traffic regulation order to prohibit the use of motor bikes—for example, unlicensed motor bikes—that are acting illegally ?

Jim Knight: I have not had any discussions with the Home Office about that but it is a point that I will reflect on, particularly in the context of the guidance that we intend to publish soon for local authorities and the police on the enforcement of vehicular offences on rights of way. We hope that, by publishing that guidance, we will assist the police and local authorities to take robust action. Local highway authorities need to have clear and agreed policies in place on the use of traffic regulation orders. That will enable them to be more decisive when deciding to make individual orders. The traffic regulation orders in place on the Ridgeway have demonstrated how quickly orders can be put in place provided that a firm decision is made that is backed by a prompt but robust assessment of the relative need to hold a public inquiry. That is an issue that we are considering and on which we will issue guidance.
I think that that answers the comments that were made in the debate on the clause.

Question put and agreed to.

Clause 61 ordered to stand part of the Bill.

Clause 62 - Ending of certain existing unrecorded public rights of way

James Paice: I beg to move amendment No. 72, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘19th May 2005’.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 122, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘9th December 2003’.
No. 123, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘20th January 2005’.
No. 71, in clause 62, page 24, line 36, at end insert—
‘(1A)Where an application to register a right of way for mechanically propelled vehicles was made on or after 19th May 2005 and before commencement the authority to whom application was made may decline to register the right of way on a definitive map or statement if it considers that use of the right of way by mechanically propelled vehicles would be—
(a)detrimental to the natural environment, or
(b)detrimental to the interests of other permitted users.’.
No. 73, in clause 62, page 25, line 6, leave out ‘commencement’ and insert ‘19th May 2005’.

James Paice: Welcome back to the Chair, Mrs. Anderson.
Like the Minister, I share the view that clause 62 is by far the most important clause in this part of the Bill. What it seeks to do—as a simple man, I paraphrase for simplicity—is ensure that if a right of way is not approved for mechanically propelled vehicles, it cannot be approved after the date of commencement.  That is unless one is a landowner or lawful visitor to that land—a land-user—or if a right is specifically created under subsection (2). That is a simplistic way of expressing the meaning of the clause, but it is a paraphrase of what is being proposed.
The issue was debated widely on Second Reading. Virtually everyone who spoke then referred to the proposal and all of them did so supportively. Not only that but everyone, from both sides of the House, expressed the same concern about the date of commencement. That point was made from all quarters. The clear sense of the House was that the matter was urgent.
This morning, the hon. Member for Bridgend referred to information that we have now all received from the Green Lanes Protection Group. It gives some worrying statistics. It refers to the fact that, in Hampshire in the first five months of 2005, there have been 74 claims to establish a BOAT, compared with only six such claims in the whole of 2004. Half the new claims have been made by the Trail Riders Fellowship. In Somerset, 134 claims are in progress, compared with 13 previously outstanding. In Derbyshire, there have been 80 claims since December 2003. In the Lake district, 50 plus application packs have recently been requested by the Trail Riders Fellowship. The situation is similar in the Yorkshire dales. I am sure that every county with such rights of way will face a similar number of claims. The point that hon. Members were making is that because the Government flagged up this proposal a long way in advance, everyone who wanted to establish a right for mechanically propelled vehicles understandably rushed to do so before the Bill closed that option.
As hon. Members and the Minister have said, there is a serious problem because some—but only some—users of rights of way for mechanically propelled vehicles abuse that right. They make too much mess, show disregard for other users and, as I said on Second Reading, want the ground to be churned up and turned into mud because that is more exciting. That does not apply to everyone; some simply want to go for a ride in the country and a green lane is good place to do so. However, sadly, those who just want a pleasant ride in the country are being seriously affected by the behaviour of others.
I know that the Government and the previous Minister, the right hon. Member for Cardiff, South and Penarth, had long consultation, including with the user groups, to try to find a way forward. The Minister may tell us that those discussions are ongoing, but the reality is that we need a law to back them up. Even if an agreement can be reached with the Trail Riders Fellowship, the Land Access and Recreation Association or one of the other user groups, that would not require compliant behaviour by anyone else. Once a right of way is established for mechanically propelled vehicles, it is open to anyone who wants to go roaring up and down it. If they are not members of an organisation, there is nothing, as the law stands, to stop them doing so and chewing it up.
I am a basically a libertarian in my attitude to life and do not want to stop people doing things, but I and my party have reluctantly come to the view that we must stop what is going on, as the Government are doing. There are better ways of providing land for the use of mechanically propelled vehicles, such as the way I touched on during an earlier debate with the hon. Member for Brecon and Radnorshire. Individual landowners could provide facilities or many landowners working together could do that. We already have the concept of permissive paths whereby people can create a footpath out of the goodness of their heart, and I cannot understand why they could not create similar paths and allow mechanically propelled vehicles to use them.

Roger Williams: I greatly appreciate the hon. Gentleman’s comments, which could apply to owners of public land. The Forestry Commission or the military could provide such facilities without disturbing the people who use the countryside for other recreation.

James Paice: I am grateful to the hon. Gentleman for making that point, which I was about to make. England has large tracts of forest and other publicly owned areas of land that could be used, although we do not want forest to be chewed up any more than necessary just because it happens to be protected from public view.
There is another analogy. Many farmers in Essex have joined together in an organisation to provide horse rides, for which the riders pay—I do not know how much, but believe that it is not much. The farmers have provided very long rides. The riders wear an armband to show that they have paid and can ride for mile after mile, from farm to farm on interconnecting paths. That has nothing to do with legislation or rights of way, but is a facility for enjoyment. For the life of me, I cannot see why the same principle cannot be adopted for people who genuinely want to take their vehicle, whatever it may be, for a gentle ride in the country. That is a sensible way forward.
I have come to the view that the legislation is right, so I return to the principle behind the amendment: how do we deal with the problem that is clear in the figures and that was referred to on Second Reading? Once the previous Minister had announced the consultation process, those who wanted to establish more vehicular rights of way immediately set about trying to speed up their application rate. That is human nature; it has happened many times.
Those of us who have been in this House for a few years can recall other occasions where people’s behaviour has been affected by impending legislation. I remember it happened when the Conservative Government were in office and the Chancellor of Exchequer announced that he was going to withdraw the double mortgage tax relief for house buying. I do not know whether you were in the House at the time, Mrs Anderson, but he announced that he was going to do so several months in advance and we all remember that there was a sudden surge in demand for houses because everyone wanted to get their double mortgage  tax relief. I know that that is a wholly different issue, but the principle is exactly the same. Impending legislation controls human behaviour, which is what we are dealing with in this group of amendments.
I was particularly concerned by the remarks made by the hon. Member for Sherwood (Paddy Tipping) on Second Reading, which have now been endorsed by another briefing that we have received from the ramblers. On Second Reading, he said:
“I am told that the reason why a long commencement date is envisaged is that the Government have received legal advice that there are human rights implications.”—[Official Report, House of Commons, 6 June 2005; Vol. 434, c. 1029.]
Almost identically, the ramblers have said:
“The Government claims that it has legal advice which suggests there are European Convention on Human Rights implications associated with the extinguishment of rights without a period of notice, but it has so far failed to release that advice.”
I reflected on that in my own winding-up speech, and it is clear from one or two letters that I have had that some people misunderstood the import of my remarks. My remarks were intended to show that I failed to understand how human rights legislation could be used to allow users of vehicles to continue using a road if that were contradictory to the human rights of all the other users of the byway—I should not have used the word “road”. It seems to me that one set of human rights are put against another. If the Minister is going to raise the same point—I cannot say “again” because he did not raise it last time—in this debate, I hope that he will share with us the legal advice and give us a bit more substance.

Colin Breed: I, too, reflected on the issue of human rights. I thought that if one were to withdraw something that people were currently using, and people had invested and planned to make use of a right that was suddenly withdrawn, there might be a problem. However, that had nothing to do with giving people a future right. The right in question related to those who are currently enjoying a benefit or using a right that is suddenly withdrawn, which might have implications under the convention. It had nothing to do with rights that were to be withdrawn from people who do not have them at the present time. A person cannot plead that they will be affected by the taking away of a right that they do not yet have.

James Paice: I agree. If anybody proposed that we change the law where there is already on the definitive map rights of way for mechanically propelled vehicles, I could see how human rights legislation would come into play, because we would be removing an established legal right. However, we are talking about the right to seek to establish a right—the right to apply to have a byway registered on the definitive map as usable by mechanically propelled vehicles. That is why I hope that, if the Minister is still of a mind to reflect on the legal advice, he will share it with us.
I am not a lawyer, but I do not understand how the proposal is logical when compared with the human rights of everybody else. As soon as one gives rights for  mechanically propelled vehicles, one is acting to the detriment of the human rights of other people who want to use the byway. In the past few days, I have received letters from people throughout the country saying, “Of course, we’ve got horse riders, and we don’t mind a little bit of mud. We don’t expect to go walking in the country in sandals,” although some people clearly do. The letters also say, “We expect it to be wet and perhaps a bit slippery and to wear our wellingtons, but we can’t cope with mud and water up to our knees.” It is dangerous for a horse to go through deep mud, because one does not know what is underneath it. There could be broken glass and all sorts of things. The human rights of those users are directly affected once the right of way is given to mechanically propelled vehicles.
There is a concern about the time scale. The Government appear to imply in their comments that the commencement is some way off, and that it will be not on the date of Royal Assent, but some considerable time hence. That is even more worrying, because I suspect that the significantly increased flow of applications will turn into a flood—indeed, some would say that it already has.
I contend that, at the very least, the tap should be turned off from the date of the Bill’s publication. In my amendments, I have provided a range of options, and I readily accept that all of them are retrospective, and that two of them are seriously retrospective. It is conceivable that we would be taking away rights where applications since the date that I shall come to have already gone through. Nevertheless, there is a case for it, because people have applied in the knowledge that the right may change.
The first obvious date that one could use, which is in amendment No. 122, is 9 December 2003. That was when the Government went out to consultation about the issue, and it must have been the date when the warning flags went up for those who want to establish rights of way for mechanically propelled vehicles. In true justice, that date would be my favoured option, because since then human behaviour will have been affected and it will have sought to accelerate the trend.
The second and much more recent optional date is 20 January 2005, in amendment No. 123. That is the date on which the right hon. Member for Cardiff, South and Penarth, then the Minister for Rural Affairs and Local Environmental Quality, announced the conclusion of his consultation—in other words, when he announced what he was going to do and what is now in the Bill. It seems that that would have been a trigger for more people to apply.
The final and minimum date that we should use is 19 May, the date of the Bill’s publication. It was the date when the Government not only said what they were going to do, but made it abundantly clear. There it was in black and white, and that was what it was going to mean.
I hope that the Government will listen to my arguments. I am sure that the Minister has plenty of contrary arguments, including the legal advice.  Perhaps he does not agree with the individual dates, but the views that I have expressed had the general support of everyone who spoke on Second Reading.
Finally, I refer to amendment No. 71, which takes a slightly different approach. Again, this group of amendments offers a menu. I do not pretend that all the amendments could be accepted—I would be happy if one were—but for the purpose of debate they present options to the Committee and to the Government.
Amendment No. 71 proposes:
“Where an application to register a right of way for mechanically propelled vehicles was made on or after 19th May 2005 and before commencement”—
in other words, the gap between 19 May and commencement, if the Government insist on a long commencement date—
“the authority to whom application was made may decline to register the right of way on a definitive map or statement if it considers that use of the right of way by mechanically propelled vehicles would be—
(a) detrimental to the natural environment, or
(b) detrimental to the interests of other permitted users.”
In some ways, the amendment addresses the point made by the hon. Member for Bassetlaw about the anomaly of other interested parties. It may not go as far as he wanted in other contexts, but it is a serious attempt to find a way through the impasse. If the Government believe that they have to follow the legal advice which we have not yet seen—or even officially heard of—this approach would provide them with a way to ensure that the large backlog that is accumulating does not drive a wedge through the principle behind the proposal.
I apologise to the Committee for taking so much time to introduce this group of amendments. I believe that they have widespread support across the House, at least in principle. In some ways, I am reluctant about them, inasmuch as I hoped that accommodation might be found in the countryside for everyone. I do not like saying that a particular group should be excluded, but, after much consideration and many constituency cases, I have decided that we must accommodate mechanically propelled vehicles in a slightly different way from everybody else.

Paddy Tipping: I am delighted to follow the hon. Member for South-East Cambridgeshire (Mr. Paice), who spoke in a moderate, thoughtful way. He said at the beginning and end of his speech that there is agreement across the House, and there is. I ask the Minister to reflect on the political situation. He demonstrated remarkable political acumen in the first week of May, and he will need to repeat that trick now. I remind the Committee that I am the vice-president of the Ramblers Association. I am delighted that it is speaking with one voice—a bit like new Labour. I just want to reinforce several points that the hon. Gentleman made.
First, we must have some clarity today about the commencement date. Second Reading has been followed by private discussions, yet I do not have a clear idea about what the Minister and his officials have in mind. If he wants my support, I need to know the commencement date.
Secondly, if the Minister wants my continued support, his officials must do more survey work. As the hon. Member for South-East Cambridgeshire said, there is a big disparity between the work that the Minister’s officials have undertaken and the work that the Green Lanes Environmental Action Movement has done. My hon. Friend the Member for Bassetlaw spoke this morning about the nine alleged cases in Nottinghamshire. He knows of nine cases in his constituency. I know of many more in north Nottinghamshire. More work needs to be done on what appears to be happening, which is a surge of new applications and claims. Will the Minister give me an undertaking that that work will be done?
Thirdly, and most particularly, I am astonished about the legal advice. I am not convinced by it. I have seen counter legal advice, but that is no good until we have seen the advice that the Minister is receiving. I remind the Minister of the political situation: there is support throughout the House on the issue. If he wants continued support for this part of the Bill, I want an assurance today that the legal advice will be published. I give him an assurance that, if it is published, people will pore over it and produce counter-arguments. I am strongly of the opinion that counter-arguments can be put forward. The hon. Member for South-East Cambridgeshire hit the nail on the head when he said that it is other path users who are having their rights abused. That abuse must stop quickly.
Finally, I say to my hon. Friend that the previous Minister started us on what has been a long road. I want a final promise from the Minister today that consultation will finish. I want some early action on the issue. The hon. Member for South-East Cambridgeshire spoke in a gentle way. I have been less temperate in my demands. The demands are firmly in front of the Minister. I want reassurance. People who use the countryside for quiet recreation want action and want it quickly rather than slowly. During the rest of the debate, I hope that the Minister will reflect on the demands that I have made.

Colin Breed: I do not want to reiterate all that was said by the two previous speakers, because I agree entirely with what they said. I made an intervention about my understanding of the human rights implications for those currently enjoying rights who might later feel denied them.
I tried to find out how many applications we have had in Cornwall, which might appear to be a place that would have many applications, but it does not seem that there have been many at this stage. Saying that might elicit loads, which may be difficult.
I am aware of one problem. I suspect that all hon. Members will have at least one or two issues that go on from year to year. One of mine involves Potford lane and Shillamill lakes. It is a real problem. It is supposed to be a road, or a BOAT, but nothing can go down it. Nobody in their right mind would take a vehicle down it, except those who wish to use trail bikes and 4x4s. Such people come from all over the place.
Six years ago, it was a modest problem affecting a few people who live in the vicinity three or four times a year. It has grown in the past six years from being an  occasional nuisance to being a weekly nightmare. I suspect that that is partly because of the internet and people’s ability to disseminate information widely. Now we do not get a few bikes every now and again—there are dozens of bikes on many Sundays. They are causing total misery to people and have made the road even more impassable. Not only that but, because there are so many vehicles, all of which tend to drop a bit of oil and fuel, that oil has come off the BOAT and gone into the lake, killing some of the fish in the lake. So the problem continues, in greater concentration.
I pay tribute to the county council, which to be fair has attempted to use current legislation to control the situation. The best way of doing so would be to get a few hundred tonnes of tarmac and tarmac over the byway, because it would then be of little interest to those people. It is hardly top of the list of priorities for cash-strapped local authorities that want to carry out many other schemes.
I have described an instance of this huge, growing nuisance, and if we do not tackle it quickly, we shall have a further massive explosion of such activities. That is the import of what has been said about the commencement date, and there are three aspects to it. When should the commencement date be? Everyone recognises that it should be as soon as possible, and the amendments provide the opportunity for a discussion about the dates.
The date of publication of the Bill is an important date, and all properly completed applications received and accepted before that date ought to be considered under the previous rules, otherwise, there might be implications. The issue about rights that would have been allowed under the previous legislation might provoke a human rights challenge, although I cannot be certain until we see the advice.
Applications received just after the publication date are perhaps going through at this very moment. Those applications have not been granted. The people were aware of the publication date, and they were put on notice. Being put on notice is contrary to the human rights, and one does not automatically believe that the application will be successful. One might hope so, because the publication of the Bill has placed any applicant on notice that legislation is coming in. Those applications should not be entertained under the rules that applied before the publication of the Bill.
Finally, there are the existing rights. My constituents who live in and around Shillamill lakes and Potford lane are desperate for legislation that will remove the rights of those who are making their lives a misery and restore to the people who are legally entitled to use the byway the right to use it. They cannot use it now because its condition has deteriorated due to horse riding, scrambling and so on. No one in their right mind would walk along the byway in question, as they would probably twist an ankle, or even break a leg.
The heart of this aspect of the legislation places great demands on the Minister and on his team to satisfy those points. There are those who have legitimately applied for rights; those who have applied since the  publication of the Bill, and who should be dealt with in second class; and all those who are affected by the existing rights whose applications need to be withdrawn. It is a difficult balance to strike, and it is at the heart of what most people want to see from part 6.

John Mann: I have three brief points to make. First, the research about the level of applications carried out for the Department for Environment, Food and Rural Affairs, which I think the Minister was contemplating when he spoke on Second Reading, is simply and factually wrong. In my constituency there are more applications. In fact, from my house I can see more byways that are subject to applications than are on the DEFRA list for the whole of Nottinghamshire. As the Minister may know, I do not live at the top of Clarborough hill, and the county is very flat. We have already identified 17 proposed traffic regulation orders to try to block any new rights just in the Clarborough area. It is a much bigger problem than DEFRA officials have suggested. Over the past few years there has been some discussion between the Minister’s predecessor and his officials and myself about how many applications there have been in Nottinghamshire. I kept giving them details, and I kept being told that there were not that many. That is because in Nottinghamshire, even this week, officials at the county council are dealing with single applications that actually cover a multitude of them. One letter from a person submitting multiple applications is counted as one application. That does not give the Minister the proper scale of the problem.
There is a kind of consensus on my second point. I still remain somewhat unhappy about it, which is rather ironic because I have probably spoken and demanded action on the matter more than anyone in the House during the last Parliament. I agree with the hon. Member for Brecon and Radnorshire—we need something that will work. Kids on bikes in my area are breaking the law already and giving them the legal right to do what they are doing is not a good thing. However, they will not simply go away, and I would like to see the culture changed.
There is a plethora of quad bikes, and these midi bikes for three and four-year-olds, and the kids riding them go out of the estates and villages and into the fields and woods. As they get older they go further—they go everywhere. They do not go on roads because it is not as much fun. Then they see organised groups, which people pay to join, creating routes. Once 20 or 30 quad bikes out of the white vans have gone round the route, the kids follow them because there are some nice, churned-up routes. There is a big rut that they can zoom down and fire up out of, which is much more enjoyable.
When I walked the Pennine way, I had problems getting across certain parts of the route—the official right of way. I could see exactly what had been happening, and how what was initially a little divot had eventually turned into the equivalent of a  skateboard park. Certain riders were deliberately and calculatedly using those areas. There is clearly an imbalance, but there need to be equal rights all round.
I do not know what the Minister’s legal advice is, but it is bound to say that there will be issues that could cause problems and delay. The last thing I want is delay. I would like kids—and adults, too—in my area who want to ride quad bikes to have somewhere to go to do that. However, I do not want them down any lane that they want to use legally—with these rights that have come in—or illegally. I do not want them clashing with horse riders or dog walkers. I do not want the woods in places like Warsop chock-a-block with kids on bikes creating mayhem at all hours, destroying wildlife, the environment and people’s peace. That is not reasonable, and we need to get a balance of rights.
A. W. Wainright’s favourite mountain is Great Gable, and I agree with him. Anyone who knows Great Gable, one of the greatest mountains in England, will know that it is impossible to walk up it using a proper footpath. It is like going up a staircase, and it knackers your knees going down. It is the most beautiful mountain in this country and it is not just a nightmare to go up it but a nightmare to go down it, because of overuse. There is a balance to be found between people’s rights to go there and preserving the natural environment. It is a difficult and complex issue that needs more attention than it has been getting.
We must have a solution that will make illegal this plethora of upgrades that will allow the otherwise illegal, random use of motorbikes and quad bikes. In other words, we need a block. Whatever the deadline, and however it is carried out, that must be done. It is clearly the case that a plethora of new applications have been made in a coherent way. There have been advertisements on websites and solicitors have made applications. It is clearly unreasonable to have that big block of upgrades becoming legal.
However, there is another problem. The applications in my constituency were put in before the consultation. That is partly why there was a consultation; I had spent every day in this place explaining the problem to the previous Minister. There were mass meetings in all the villages, with people demanding action. Evidence was provided. I gave him all that. Whichever date is chosen from the options that have been suggested, the applications will predate it. There must be a solution. I am told that it will take three or four years for the applications to be dealt with. There is a legal process under way, but, whatever we agree, we will be agreeing another set of laws. There is a clash. There are quite a lot of lawyers’ paradises around at the moment; will this be another?
I can see one route round the problem for the Minister to contemplate. I raised it earlier. He could see whether, in addition to the other things that are being done, the applications that have been submitted could be assessed—as in one of the amendments tabled by the hon. Member for South-East Cambridgeshire—not on the historic rights, but in relation to the wider agenda. In other words, I am quite happy to take the risk of determining the applications in my area in  relation to the wider agenda of the natural environment, the rights of other users, and crime and disorder issues. I am happy for a rational decision to be made.
I would hate to see the earliest applications, which, across the country, are some of the most problematic, escape what the Government are attempting to do in the Bill due to an anomaly. So, over the next few weeks, the Minister and his officials need to give some thought to whether this part of the Bill has been put together in exactly the right way.

Nick Herbert: I rise to support what other hon. Members have said and, in particular, the amendments that have been tabled by my hon. Friend the Member for South-East Cambridgeshire. I share the concern about how we balance recreational use of the countryside against the needs of the environment and the need to preserve quiet enjoyment of the countryside. We should not ban anything lightly. In my constituency, I have already received representations from people both sides of the argument. Indeed, the issue was the subject of one of my first surgery visits. A very reasonable biker came to see me expressing concern. However, I have to say that I agree with my hon. Friend and that I find myself on the side of the argument that says that it is right to close off future applications.
The difficulty is quite well illustrated by another Roman road, Stane street, part of which runs through my constituency. It is a bridleway that runs through some outstandingly beautiful countryside in the villages of Slindon—a National Trust village—and Bignor. The countryside is so magnificent that I dare say that it would even rival the rural idyll of Sheffield. The Trail Riders Fellowship applied to turn the bridleway into a BOAT, but that application was very properly rejected by West Sussex county council. The Trail Riders Fellowship is appealing. What is the status of such appeals to the Secretary of State in the context of the amendments? I do not seek to draw the Minister into the treacherous territory of his quasi-judicial functions; nor do I seek to invite him to reject the appeal, although I hope that he does, but I would like to know what the status of such appeals is.
We should be concerned about any legislation that is retrospective. However, having thought about this a little, I have difficulty understanding why such arguments should hold sway in respect of this measure and why the Human Rights Act 1998 should hold sway.
As other hon. Members have said, we are not proposing to take away a pre-existing right or current enjoyment. This use of a procedure to try to change bridleways into BOATs seems to be almost a lacuna in the existing law. It is not common sense that simply, because two millennia ago Roman centurions were trundling chariots up and down what was then a made-up road, a present footpath in an area of outstanding natural beauty and a scheduled ancient monument should be used for motorised vehicles. Any reasonable person who was asked whether it was acceptable to  apply for change of use under such an historic provision would laugh and say that it was plainly absurd. We are not taking away a pre-existing right, and it is not common sense that that right should be exercised.
The reason for the measure is that harm is being, or will be, done by such a change of use of rights of way. If that is so, there is no case for delay and it is justifiable to prevent that harm as soon as possible. There has been a build-up of applications in West Sussex, as elsewhere in the country. The measure was telegraphed some time ago and it is perfectly proper to consider retrospective amendments to prevent further abuse of historic provisions.

Janet Anderson: May I inform the Committee that, as we are having a wide-ranging discussion, I am minded not to have a stand part debate? I thought it fair to inform hon. Members of that now in case it affects their decision on whether to speak in the debate.

Angela Smith: I shall add to the confusion of the DEFRA figures by reading out an email that I received from the principal rights of way officer at Sheffield city council. Sheffield city council works closely with Derbyshire county council and surrounding authorities. The email states:
“ Derbyshire”—
 the county council—
“have just had 100 claims lodged with them and have been told to expect a further 100 claims in the near future”.
That makes Derbyshire, with Wiltshire and Oxfordshire, one of the hot spots of this problem.
In Sheffield—which may be a rural idyll, particularly as there could be up to 50 claims in the area within the city boundary but outside the Peak district—the view of the rights of way officer is:
“If only 50 per cent. of these claims are successful, it is going to have a devastating effect on many green lanes”.
The professional view is clearly that this is a major problem.
I referred on Second Reading to the already devastating effect on the principal Roman road close to my constituency—the road from Glossop to Hope. It is a beautiful road and local folklore has it that ghostly legions of centurions have been seen marching on it, although I doubt whether they would dare to nowadays given the number of motor bikes rampaging around in the area.
For ramblers and walkers, it is incredibly irritating constantly to have to give way to trail bikes and 4x4 vehicles. Not only that, it is great fun for walkers in areas such as the Peaks to negotiate their way across a peat bog, such as Kinder or Bleaklow, but it is not fun, as the hon. Member for Banbury said very eloquently this morning, to have to wade through a sea of mud in winter which then turns into series of knee-wrenching ruts in summer. Anyone who has walked such badly damaged lanes knows exactly what that means.
I understand that the legal advice that the Minister has been given, which I press him to release, relates to human rights. I wish to say two things about that. First, if the advice is about the rights of trail riders to use the lanes, I would argue, as the hon. Member for  South-East Cambridgeshire, did that the rights of walkers are much greater than those of trail bikers. The debate has parallels with the one about smokers and non-smokers. This country now acknowledges that the rights of non-smokers are greater than those of smokers.
If the legal advice, however, is about the rights of trail bikers and 4x4 users to put in a claim before the Bill becomes law, I would argue that that is not legitimate, in my layperson’s view. In effect, we would be saying that citizens have a right to subvert new laws before they come into effect and the will of the country. That seems an illogical view of human rights. I look forward to seeing the advice. Along with my hon. Friend the Member for Sherwood, I ask the Minister to listen carefully to the responses and challenges to the advice—if it is released—from the Ramblers Association and from people such as us.
I also ask the Minister to consider carefully the need to act quickly if a large number of the claims are acceded to by local authorities. Many are already being processed. It would be much harder for local authorities to deal with the hundreds of traffic regulation orders that would be necessary than it would be for the Government to do something so that local authorities are not put in that position in the first place.
Finally, I wish to refer briefly to the comments about trail bikers. We must distinguish carefully between trail bikers who perform a legitimate activity, who practise a sport and who are licensed to ride their bikes, and illegal users. There is a real danger that the legislation will be understood as dealing with all illegal use of motor bikes everywhere—that is certainly how it has been interpreted in some quarters. There are problems with motor bikes in my patch and across Sheffield. They go through ancient bluebell woods; they are damaging the trig point at Bolsterstone in my constituency; and they are damaging Greno wood. However, the legislation is not intended to deal with that. I have a great deal of sympathy with what my hon. Friend the Member for Bassetlaw said, but I suspect that the Home Office will have to introduce other laws and measures to deal with such problems.

Roger Williams: I hesitated to make a contribution to this debate. However, as the discussion has been wide ranging, perhaps I could just make a few points.
In the Rhayader area in my constituency, the use of motor bikes in the countryside is a fundamental part of the local economy. Several local, national and international events that depend on motor bikes having access to the countryside take place there. Of course, the Bill is viewed with a certain amount of concern by those who are involved, and I have been at pains to explain to them that any rights of way that they have now will be unaffected by the legislation. Obviously, they would like to extend the rights of way that they use, but it is as well to make it clear that the legislation is not retrospective and will not affect the rights that motor cyclists and other vehicle users have at present.
As the hon. Lady said, there are responsible and irresponsible people. Members may find this difficult to imagine, but I was photographed recently in some ruts that came up to my chest and that had been made by four-wheel drive on the Owain Glyndwr long-distance footpath. Part of that footpath is a BOAT that is used by 4x4 operators. Luckily, the local authority has put a stop to that for a month to consider the issue. I think that it will come to the conclusion that it cannot allow that important path to be used by vehicles. I am not sure how the local authority will implement that conclusion.
The issue is not just that the vehicles were scarring the countryside. They were destroying a farmer’s land, on which he depended to make a living. The farmer said to me that if he had created that mess, he would have been prosecuted or had his farming subsidies withdrawn. I understand what he was telling me. Not only that but the silt that was flowing off the ruts was going into tributaries of the Wye and interfering with spawning grounds for lamprey and salmon. As a result, a site of special scientific interest was being destroyed.
The issues are wide ranging. I make the point that just because an application has gone in does not mean that it will succeed. It seems to me that the ones that are most likely to succeed have gone in already. Many of the applications that are going in now are real flyers.

John Mann: It was the rights of way for which maps are most readily available—not necessarily the cases for which results were easiest to obtain but those for which the initial information can be most easily obtained—that were the subject of the first applications. When dealing with historic rights, it is a question of how much research one is prepared to do and how many old maps one is prepared to dig out.

Roger Williams: There is an element of that to the issue. The Romans are not the only ones that we must blame. Many decisions depend on tithe maps. If one looks at those maps, one can see that there certainly was an incentive for landowners to have rights of way and roads on their land, because they did not pay tithes on something that was for public use. So, if they could get a few roads stuck on their land, they ended up paying less in tithes. I do not know what influence the landowners had on the people who drew up the maps, but perhaps we should blame them rather than the Romans.
The process is an obscure one. Those who have been through it will know how complicated and soul-destroying it is. That leads me to the conclusion that we reached this morning: what we need is a thorough-going review of the rights of way legislation and the rights of way network. The system serves nobody. This is a minor improvement and we are struggling with it. We need something that will equally upset ramblers, the British Horse Society, the Land Access and Recreation Association, trail riders and landowners. We are struggling with something that has no purpose in the society in which we live. I will not stray that far. It seems to me that the point that was made about  commencement is valid. It is up to the Minister to take it on board and see whether he can come up with something that is more definitive and precise.

Jim Knight: We have had a useful debate. Clearly, the clause goes to the heart of the key concerns that have been widely expressed. I want to make it clear to the Committee that I share those concerns about the recording of historically mechanically propelled vehicular rights—that is such a fine phrase—in the rights-of-way network. I pay tribute to all members of the Committee who spoke about the work that they have done on the issue, but in particular to my hon. Friend the Member for Bassetlaw for the work that he has done consistently for a number of years. To some extent, we would not have got where we are now had it not been for the work that he did with my predecessor. I pay tribute to him for that.
I am delighted that the clause is so popular with the Committee that we have a discussion about when to commence it. I will come on to the detail of that important issue in a moment.
First, though, I want to make some comments about the clause itself. To clarify the current situation, the rights of way for mechanically propelled vehicles can be established without the requirement for any consideration of the impact on the environment, the effect on local people or the effect on other users of that right of way. The only consideration is whether that right of way can be reasonably alleged in the past for vehicular use, including chariots.
Currently, no distinction is drawn between rights for mechanically propelled and non-mechanically propelled vehicles. That means that the historical use by horse drawn vehicles or an expressed dedication for such vehicles can also give rise to public vehicular rights for modern mechanically propelled vehicles. In many cases when the rights came into existence, the internal combustion engine had not even been invented.
Once created, a right of way can be extinguished only by statute, whether the right of way is recorded in the local authority’s record of rights of way, known as the definitive map and statement, or not. The common law maxim “Once a highway, always a highway” applies, and it matters not if the way has fallen into disuse. That is why historical evidence of rights of way that may have passed out of use many years ago can support an application to record a way on the definitive map.
Proposal 4 in the Government’s consultation was a remedy for that anomaly, and this clause will deliver it, in so far as the clause extinguishes mechanically propelled vehicular rights when they have arisen from historical non-mechanically propelled vehicular rights. It will prevent the recording on the definitive map of byways open to all traffic, except when the conditions of the limited exception set out in the clause are met. In our discussion of the political reality, as the situation was put to me by my hon. Friend the Member for Sherwood, we must celebrate and not lose sight of the fact that we are taking action against historical  rights. We are shortening the time for which those rights can be lodged from about 20 years, as set out in the Countryside and Rights of Way Act 2000, to one year or less. The debate is now about “or less”.
The clause will further address unforeseen consequences of the Bakewell judgment, which significantly broadened the possibility of rights for mechanically propelled vehicles. Its effect has been to allow, subject to certain conditions, the use of mechanically propelled vehicles right up to the present to be counted for the purposes of acquiring mechanically propelled vehicular rights. Claims based on such usage may be blocked by the clause, and the rights extinguished.
The extinguishing of unrecorded mechanically propelled vehicular rights will assist directly with enforcement. It will ensure that those historical rights cannot be used as a defence against prosecution for driving on a footpath, bridleway or restricted byway under section 34 of the 1988 Act.
The clause extends to ways already recorded on the definitive map as footpaths, bridleways and roads used as public paths, as well as to land where there is no physical evidence of a route but over which historical rights from several hundred years ago can be uncovered. By the time this clause has commenced, they will all have been reclassified as restricted byways. The scope of the legislation does not extend to minor roads maintained by local highways authorities which fall outside of the rights of way network.
The clause further ensures that a private vehicular right of way will be conferred on property owners or occupiers who rely on unrecorded public vehicular rights of way to access their premises by motor vehicle. I shall return to the issue of those individuals soon, because they are critical.
I should caution that, as we have heard in the context of the Ridgeway, removing historical rights is only part of the solution to this serious problem. Some rights have been or will be established. My hon. Friend the Member for Bassetlaw noted that the destruction of wildlife, of the environment and of people’s peace continues to occur, and it will be up to the local highways authority to consider using traffic regulation orders. As I mentioned earlier, we are reviewing that.
All the amendments seek to apply an element of retrospective consideration to applications to record a mechanically propelled vehicular right. I pause at this moment to endorse the motivation behind them, which I fully understand. We have a serious problem and we need find a way to address it, which is what lies behind the tabling of the amendments.
Amendment No. 71, in conjunction with amendments Nos. 72 and 73, would apply a sort of suitability test to be applied by the local authority to applications on or after the date of parliamentary introduction of the Bill. Aside from the human rights considerations, which I shall come to later, I have reservations about a statutory approach to local authority assessment of the suitability of claims lodged. That point was also raised by my hon. Friend the Member for Bassetlaw. A similar approach was taken to the reclassification of roads used as public  paths in the Countryside Act 1968. Disputes about the 1968 suitability reclassifications are ongoing and I fear that in many cases local authorities would be challenged if we went down this particular option—I managed to stop myself saying “road”—on the objectivity of their assessments. I would caution against that.
Amendments Nos. 122 and 123 are rather more direct and would provide for the retrospective application of clause 62. There are legal difficulties in applying new legislation retrospectively, which I shall come to, because there is a general presumption against legislation operating in this way. There are clear human rights issues that cannot be ignored. When I talk about human rights, in many ways I am not talking about the rights of 4x4 drivers and trail bike riders that my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) referred to. I am mostly talking about the rights of property owners to which I referred earlier.
Article 1 of the first protocol of the European convention on human rights provides that
“every natural or legal person is intended to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
Although clause 62(3) gives a private right of access to those with an interest in land who need to use the public right of way to gain access to their property at the time of commencement, it is not beyond doubt that convention rights may be infringed because those rights of access to property may be reduced. We have taken legal advice on the issue and it states that giving users the opportunity to apply to register for a public right of way before commencement would avoid this problem. We are after a like-for-like substitution of public for private rights and we need to give adequate notice of that substitution.

James Paice: Will the Minister give way?

Jim Knight: I will give way in a second, but I just want to clarify something. I have heard from various hon. Members that they would like me to publish the legal advice and I am happy to publish the summary of that advice. I listened to the comments of my hon. Friend the Member for Sherwood very carefully. They were delivered very clearly, there was little room for misinterpretation of what he said, and I am grateful to him for that. If he can produce counter legal advice, once he has the chance to consider what I can publish, I shall certainly consider it. I give him that reassurance. I shall consider what we are doing in the legislation in the context of anything that he can produce.

James Paice: I am grateful to the Minister for giving way. I am puzzled about his remarks that subsection (3) does not address the problem, and his view that somehow the human rights of public users are being affected—if I understood him correctly. As a layman, it seems to me that the phrase
“a person with an interest in that land”
in subsection(3)(a) means that anybody who needs to go along that route to access property along it is able to do so. I cannot see how their human rights are affected by my amendments or by the gist of the debate.

Jim Knight: Subsection (3) works. That is why it has been included. A private right will be gained under the Bill, but what may be lost, and what people need to be able to have the opportunity to demonstrate, is the public right. That public right may be of some value to their property. In order to satisfy the obligations that we have in respect of the rights of those property owners—the people who have an interest in that land—we need to give them a reasonable opportunity to register that public right before they acquire the private right that we have included in the Bill.

James Paice: I know that the Minister is trying to clarify matters, but can he give an example of what he is talking about? Subsection (3)(b) refers to
“a lawful visitor to that land”.
If a landowner or a property owner has a reason for the public to visit him and to have access along the road—say he has a farm shop or something like that—surely that is covered by subsection (3)(b), which refers to lawful visitors. If the people concerned are not lawful visitors, clearly we do not want them to have rights. Can he give an example of the sort of loss of public access that will affect a private owner?

Jim Knight: While I am commenting on the other things that I have to talk about, I will reflect on whether such an example might be forthcoming. With the good use of in-flight refuelling, I may be able to come up with such an example. [Interruption.] On reflection, an example has suddenly emerged in my mind. Access may currently apply to one property, but in the future the property owner may wish to develop and build a number of other dwellings on that land. The reserved private right may then not exist, so they may want to safeguard the future value of their property by asserting a public right.

Paddy Tipping: I look forward to seeing the legal advice, rather than relying on in-flight refuelling. In the example that the Minister has given, access could probably be established through civil mechanisms. I am not persuaded at this stage by that example.

Jim Knight: As ever, I am grateful to my hon. Friend for the clarity with which he expresses his view. It is always helpful to me to understand his current thinking. He should also reflect, as I will—perhaps when we think about this issue later—on the fact that there are also certain advantages to public rights. They can be re-routed. That is more straightforward than for private rights.
So, where were we? I recognise that there is considerable concern about what will happen to applications received up to the commencement of the new legislation. Various assertions have been made, based on surveys by both the Government and campaigners, about the level of applications being received by local authorities. DEFRA carried out a  recent survey that involved telephoning more than 100 local authorities. Our latest figures—this information is hot off the press—broadly agree with those made public by the Green Lanes Environmental Action Movement. I hope that that satisfies everyone about that aspect of the dispute. If my hon. Friend the Member for Sherwood is satisfied, I will not commission any more surveys.

Paddy Tipping: I am delighted with that answer because it suggests that there has been a surge of applications, which Ministers and officials have tended to deny in the past. I think that the score is 1-0 at the moment.

Jim Knight: I am trying to suggest, with the appropriate degree of ministerial caution, that we are, to some extent, on the same side. I am pleased that we have some agreement on the matter. What we perhaps do not agree on are the projections for likely claims. I am keen for officials to pursue the matter to seek agreement. I do not necessarily disagree, but I cannot say that there will be 1,300 more claims in Wiltshire because that is a projection and I cannot deal with projections in that way. Ultimately, I must work on the basis of evidence.

Robert Goodwill: I am sure that we have all been guilty at some time of shutting the stable door after the horse has bolted, but if someone gives two years’ notice of when the door is likely to be closed, there is unlikely to be a single horse left in the stable. There are plenty of precedents for retrospective legislation, including the end-of-life vehicle directive—I was involved in the drafting of that—and the waste electronics directive. That legislation was obviously retrospective and was not challenged in the courts, despite a lot of sabre rattling about it being challenged.

Jim Knight: I shall come to retrospective legislation in a moment.
It is clear from surveys that there have been notable increases in the number of claims, particularly in some counties. There is no dispute about there being hot spots, and Wiltshire, Somerset, Derbyshire, Hampshire come to mind, as well as the area outside the back door of my hon. Friend the Member for Bassetlaw.
I am working on the basis that we will commence one year after Royal Assent. However, I made it clear on Second Reading that, as the problem becomes more widespread, it will alter the balance and I will seek greater flexibility in the timing of commencement. The Committee may have noticed that I have tabled amendment No. 157 to clause 97, which will provide the option to commence clause 62 on a regional basis. That will allow us to focus commencement on the most vulnerable areas of the country that are experiencing heightened claims. If particularly active groups are pursuing particularly vexatious claims, an option that will allow me to work with responsible elements will be to commence in some areas before others.

Paddy Tipping: The Minister is doing very well. He has provided the legal advice and he has confirmed that there has been a surge of claims, but he disappoints the Committee when he says that commencement will be one year after Royal Assent. Can I put it this way? If, as a result of any counter legal advice he receives and subsequent discussions, a way through this alleged human rights issue can be found, will he reconsider the commencement date?

Jim Knight: I certainly give that assurance. I am considering carefully whether I have more room for manoeuvre than one year. I am optimistic that I may be able to do better than that. I will keep in touch with my hon. Friend and the Committee about that.
I also accept that the period needs to be proactively managed by the Government. We need a system to manage what happens between now and commencement. I have met the main motorised user groups and industry representatives and have made it clear to them that there is evidence of a widespread flood of applications and that I will implement the legislation at the earliest opportunity, which may be less than a year after Royal Assent. I am not insisting, as some people have said in this debate, on a long commencement date. I am looking for a solution that works, which is what we are all after.

James Paice: I am grateful for that and appreciate the Minister’s sincerity, although I come back to my doubts about his caution.
If we take 19 May, the date of the Bill’s publication, as a sensible date for discussion, is there any mechanism to stop councils just shelving all the applications that they receive between that date and commencement? That would be an option for getting round the fact that commencement is several months away. It will not be before Royal Assent, and there is the recess to come. We need a way to ensure that all the applications that are in the pipeline do not simply go through.

Jim Knight: Let me directly address the retrospective legislation question, as the hon. Gentleman rightly prompts me to do. I am aware that some authorities are struggling under the weight of applications, and I would be happy to hear from them if there are particular ways in which I might be able to help them.
The presumption against making retrospective law is well known. Used in the wrong way, such law can be unfair, especially if people have been carrying out their business in the expectation that they will be given proper notice before a change in the status quo takes place. I agree with the general principle and believe that most members of the Committee do so as well. I have no hesitation in defending it in normal circumstances.

John Mann: Is there any reason why the retrospective issue cannot be sidelined by the use of traffic regulation orders? They are cumbersome but, in fact, give more powers in that they make an assertive restriction and the police feel more obliged to police a  restriction set up by a TRO. I believe that they have been used in Hampshire with some success in some parts.

Jim Knight: I am not aware of any reason why a local authority, once it has gone through the proper process, should not apply a TRO wherever it sees fit. If an application for a place caused the authority some concern and it saw fit and had gone through the proper process, I am sure that it could issue a TRO.

John Mann: I understand that what happens in Hampshire is that a pre-emptive TRO to an upgraded RUPP—or one in the process of being upgraded—is made in advance; in other words, before the rights have been upgraded, they have been downgraded with a specific restriction that can then be policed. If used in Nottingham, such a TRO would solve the problem and bypass the issue of retrospective law.

Jim Knight: I bow to my hon. Friend’s research. I am not aware of the example in Hampshire but hope that I soon will be. I shall return to my point on retrospective legislation. A presumption against making retrospective law can, of course, be rebutted. It is well established that this Parliament can make retrospective law in appropriate circumstances. To some extent, the hon. Member for Scarborough and Whitby (Mr. Goodwill) dealt with that point.
For example, it will not have escaped Members’ attention that the Commons Bill, which was introduced in another place on Tuesday and for which I am the Bill Minister, contains retrospective provisions to prevent the severance of common rights. I am sure that all members of the Committee have read that Bill and noticed that. However, the circumstances in the Commons Bill justify a retrospective provision, and I shall set out a strong case for it before the House later in the Session. I look forward to debating it. There is wide public interest in maintaining a traditional system of common land in this country.
I do not believe, however, that the retrospective provisions in the amendments can be justified. I have discussed how clause 62, as it stands, could affect the rights of many people who have a genuine interest in maintaining motorised access to their property. They need to be given a reasonable opportunity to preserve the current public access arrangements on which they rely. If my hon. Friend the Member for Sherwood or others can furnish alternative legal advice to dispute that, I will be interested.
I do not underestimate the problems and nuisance caused by the bikers and by the 4x4 drivers. However, I do not believe that the problems are large enough to justify the use of retrospective law—and I do not know that we can get away with it. That is the bottom line. I am not sure that the courts would think that those problems were large enough.
I want the provision to be watertight so that we can deal with the problems affecting the many legitimate users of rights of way about whom many Members  have spoken. I think we can achieve it in the near future, and I do not want to put it at risk by trying to achieve it yesterday.

Colin Breed: We all understand the difficulties that the Minister faces. We want to get the legislation right and watertight for the future. However, he is effectively saying, in answer to the hon. Member for South-East Cambridgeshire, that it will be up to the local authorities to try to work a way round the problem. Goodness knows how many applications will be sent to the local government ombudsman because those matters have not been determined. It may be subjected to all sorts of additional work, because I suspect that many local authorities sympathise with what we want to do and want to protect the current situation from any of those applications.
Local authorities will be placed in the invidious situation of trying to manage a situation over which they have no real control. They shall look to central Government to assist them but, at the end of the day, the Government will leave them to try to sort it out one way or another, and local people will rail against their local authorities for allowing the situation to occur, notwithstanding the fact that legislation is going through. The provisions are very harsh on local authorities.

Jim Knight: It is a difficult situation. I want to end the abuse of the countryside by irresponsible drivers and riders of mechanically propelled vehicles, about which we have talked. I want therefore to extinguish the historical rights about which we all agree. I want to do that in as practical and pragmatic a way as I can, so that the process works. When we have completed it, we will still find ourselves with some problems, because those rights will have been successfully asserted. Local authorities will then have the power, and they will have the responsibility to consider the use of those powers to resolve those problems locally.

Angela Smith: I am absolutely certain that most local authorities facing this situation will find it difficult to respond with the restricted resources available to them, particularly if up to 50 per cent. of claims are successful in, for example, Derbyshire. Given that local government always have to prioritise their areas of work, as indeed central Government do, it is likely in the grand scheme of things that traffic regulation orders for successful claims will come fairly low down on the order of priorities in the highway authorities.

Jim Knight: My hon. Friend makes a good point. To some extent, her point can be answered only by the issues of democratic accountability under which those local authorities work. It will be up to representatives to listen to their electorate to see whether the issue is a priority. We will come on to discuss whether national park authorities should have traffic regulation order powers, and, as I shall make clear, I have some sympathy with that idea, because those authorities may have different priorities from local authorities, particularly when it comes to preserving our most precious environments.
There is now an opportunity for those motorised user groups to show that they shall be responsible and submit only those claims for sustainable routes. To that end, I am reconvening the Department’s time-limited motorised advisory group to work on a voluntary protocol for submitting claims. The protocol will be applied to claims from those groups or their members between now and commencement, and it will be subjected to wider consideration by the rights of way review committee to ensure that there is consensus about the criteria that are to be supplied to assess sustainability.
Let us first try managing the situation rather than acting on projections about further possible claims to which I cannot attach evidence. At this stage, nothing is lost by seeking an approach to engaging motorised users constructively, but I repeat that I reserve the right to commence as quickly as possible if that constructive approach does not work.
Mr. Herbertrose—

Jim Knight: I apologise to the hon. Member for Arundel and South Downs (Mr. Herbert). I meant to say to him that appeals on applications lodged before the commencement of the legislation will be dealt with under the current system. To do otherwise would introduce retrospectivity. I hope that that is clear.
On that basis, I hope that the hon. Member will consider supporting my approach at this stage and withdraw the amendment.

James Paice: As the Minister said, it has been a useful debate. Unsurprisingly, Members have been almost unanimous in their approach to the issue. I am grateful to the hon. Member for Sherwood for his robust support of the arguments that I laid out. It was unusual for him to suggest that I was taking the soft approach and he was taking the harsh one. Not for the first time, we find ourselves speaking the same language on countryside issues.
It is clear that the Minister has taken on board the sincerity with which hon. Members of all parties have spoken in the Committee today and in the House on Second Reading. To a degree, I accept his words about retrospectivity. I always knew that my amendments suggesting three different retrospective dates were unlikely to be successful, but they were the basis on which we have had this debate.
However, I do not believe that the Minister will find the way through that he is expecting. He will have to return at a later stage with a commencement date. As he knows, I have been a Minister. I am conscious of how a Minister receives advice and that caution is always the watchword for what Ministers do and commit themselves to. That is inevitable, given the source of the advice. However, there is a political imperative in this case to get the problem resolved quickly. Therefore, to give a year from the date of enactment to commencement is far too long. I simply do not understand how the legal advice could justify that. I look forward to studying it and, like the hon. Member for Sherwood, will obtain other advice when  it is published. I would be very surprised—subject to seeing it, of course—to find that it justified such a delay.
Before I conclude, let me return briefly to amendment No. 71, which was my proposal for dealing with the interim stage. The Minister rejected it on the basis that it would be wide open to legal challenge on the grounds of objectivity. Local authorities would decline to register a right of way on the basis that it would be detrimental to the natural environment or to the interests of other permitted users but it might not really be so, and they could be challenged on their decision. Of course that could happen, but, although I am not wedded to my words—that is a phrase that I have used many times and will use again during the Committee proceedings—I cannot help believing that the amendment is the right way forward. It would bring into the frame all the other factors in respect of vehicular rights of way that we have agreed are important and need to be considered, other than the fact that the Romans ran their chariots up and down a road.
The impact on the natural environment and other users is important. I would have thought that using my approach, if not my words, would not be as open to challenge as the Minister seems to believe. Of course, anything is open to challenge, but I urge him to reconsider the idea.
I am glad that the Minister has accepted following his latest survey that there is the surge and that we have a serious problem. Although the Minister may come to some mutual arrangement with local authorities for the future, there are already a large number of applications sitting on council desks pending a decision. We can argue about the figures. Those cases need to be resolved.
I appreciate the support that I have had from Members on both sides of the Committee for the gist of the amendments and the approach that we have taken. I appreciate the Minister’s response, his sincere understanding of the problem and his desire to resolve it. I urge him to be robust and to challenge caution, because we all demand something more positive and urgent than that. However, in the hope that he will do so, and conscious that there are other stages of the Bill at which the issue can be considered again, at this point I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 62 ordered to stand part of the Bill.

Clause 63 - Supplementary

Roger Williams: I beg to move amendment No. 107, in clause 63, page 25, line 24, at end add—
‘(4)Under sections 1, 9, 14, 22, 65, 68, 69, 71 and 92 of the Road Traffic Regulation Act 1984 (c. 27), the relevant National Parks Authority may exercise the functions of the local traffic authority for the purposes of controlling traffic by way of a traffic regulation order on any unsealed road including those classed as footpath, bridleway, restricted byway, byway open to all traffic or unclassified county road within the relevant National Park.
(5)In subsection (4), “unsealed” means any route which has an earth, gravel or cobbled surface and is not made up of tarmac, concrete or asphalt along its course.’.
I am comforted by a fact that may reassure the hon. Member for Sheffield, Hillsborough (Ms Smith)—the amendment has the support of the Council for National Parks. As the Minister said that he has some sympathy with the amendment, I am persuaded to pursue it.
Many will know that national parks have the duty to conserve both the natural environment and the built environment. Some of our most ancient rights of way bring those two issues together. An example in the Brecon Beacons national park is known as the Gap road. Sadly, the hon. Member for Bassetlaw has left the debate. Some of the Romans heading for Scotland, obviously deterred by the river Trent, must have turned left and sought to enter Wales. To cross the Brecon Beacons, those Romans built a road that is now known as the Gap road. As the Romans were a little more canny than modern road builders, they built the road on the side of the Brecon Beacons that is less affected by snow. So, while the A470 is sometimes completely blocked by snow, the Gap road is left open.
The Gap road started to be used by motor cyclists and 4x4 drivers. It is not just a right of way but an ancient monument, because it has retained some of the structures that the Romans put there. Although we can restore rights of way, we cannot replace ancient monuments. So it seemed to us that it was important that we conserve it. That is an example of how rights of way that are important, and other rights of way, can be conserved by traffic regulation orders.
It seems appropriate that national parks be given the powers of highways authorities to conserve rights of way. The amendment would limit those powers to unsealed rights of way that are not covered by concrete, asphalt or tarmac. So there is a limit. It would give national parks the right to make TROs not on roads that are used for general transport purposes but, mainly, on roads that are used for recreation.
I was chairman of the Brecon Beacons national park when we put forward the TRO for the Gap road. Everybody whom I consulted opposed that order. The police said that they could not enforce it. Motorcyclists and 4x4 drivers said that it was a huge restriction of their rights and freedoms. Conservationists said that the road, use of which the order would have limited to periods when vehicular use would not do it damage, should be closed altogether. The county council said that the order was a waste of money. Everyone opposed it, but eventually we drove it through—I am sorry to use that phrase—and it has proved to be successful. Not only does it provide the opportunity for people to enjoy that right of way when conditions are appropriate but it conserves the right of way, which is important.
I believe that the national parks would use the measure responsibly and the example of the Gap road proves that. After the then Minister of State at the Department for Environment, Food and Rural Affairs, the right hon. Member for Cardiff, South and  Penarth (Alun Michael), put the matter out to consultation, I was surprised to receive a letter saying that we should not proceed in that way but should use TROs. It referred to an outstandingly successful example on the Gap road going through the Beacons. I wrote back to the person who wrote the letter saying that if they had supported me at the time it would have given me great comfort.
I believe that this power would enhance national parks and that it would be used responsibly. I support it.

Jim Knight: I recognise that traffic regulation orders can play an important role in the management of vehicles in national parks and the achievement of national park purposes. Authorities need tools to achieve those purposes and to manage vehicles in parks. Statutory provision exists for local highway authorities to delegate their functions to national parks by agreement, and I understand that Dartmoor national park authority already has delegated traffic regulation order-making powers over public rights of way.
I consider that the amendment would not define clearly enough the scope of the regulation-making power. For example, I know from experience that some tracks are for the most part unsealed but for short stretches of 5 m or so may have more robust surfacing. It would be difficult to ascertain whether such a route fell within the amendment’s definition of unsealed when it clearly should.
An alternative way forward would be a consensual one in which national park authorities agreed delegation arrangements with local highways authorities. However, I recognise the clarity and certainty that might be afforded by providing statutory order powers direct to national park authorities and, with that in mind, I am prepared to consider the matter further and to consult with colleagues in other Departments. On that basis, I hope that the hon. Gentleman will withdraw his amendment.

Roger Williams: I thank the Minister for that assurance. The Whip has told me that we may be finishing very shortly and it is good to finish on a successful note. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Janet Anderson: With this it will be convenient to discuss new clause 8—Dedication of way as highway presumed after public use for 20 years—
‘(1)Amend section 31 of the Highways Act 1980 (c. 66) (dedication of way as highway presumed after public use for 20 years) as follows.
(2)In subsection (2) leave out the words after “question”.
(3)After subsection (2) insert—
“(2A)For the purposes of subsection (2), the right of the public to use the way may be brought into question—
(a)by a notice such as is mentioned in subsection (3) below;
(b)by an application for a modification order under section 53(5) of the Wildlife and Countryside Act 1981 to add the way to the definitive map and statement; or
(c)otherwise.
(2B)Where the right of the public to use the way is brought into question in the manner specified in subsection (2A)(b) above, the date on which the right shall be deemed to have been brought into question shall be the date of the certificate issued under paragraph 2(3) of Schedule 14 to the Wildlife and Countryside Act 1981.”.’.

Paddy Tipping: I am surprised and delighted to be able to take part in this short debate on new clause 8. The hon. Member for Brecon and Radnorshire told us this morning that rights of way legislation needed modernising and, at the risk of running into trouble with some of my hon. Friends, I tend to agree with him. Rights of way improvement programmes may be a way of doing that.
The new clause is a clear example of difficulties with rights of way legislation that is not well codified and tends to be out of date. It relates specifically to the notion of bringing into question the public’s right to use a right of way. It is set against an application to modify the definitive map. The Minister has been good about giving examples to the Committee, and I shall give one also.
There are arguments in many parts of the country about whether a right of way exists. Put in simplistic terms, if a right of way has been used for 20 years and that can be established, a claim can be made and it is possible that the right of way will be acknowledged and put on the definitive map.
There are cases in which walkers using rights of way are suddenly confronted by the landowner saying that the right of way does not exist. Typically, the walkers will be confronted by a sign saying, “No right of way here”, or, as has happened to me on several occasions, a farmer with a shotgun. That is the point of interruption—the bringing into question of the right of way. One way of bringing into question a right of way is to put in a claim to the local authority. There is no confrontation with the landowner. The person desiring to use a path makes a claim to the local authority.
There has been extensive discussion involving people who use paths, such as the Ramblers Association, and the rights of way review committee about whether the notion of making a claim constitutes the concept of “brought into question”. The advice of the lawyers—they are certainly earning their money today—is that a claim by itself does not constitute bringing into question the right of way.
As I said, there has been a lot of discussion about the matter involving various organisations and the Department. The Minister’s predecessor wrote to the rights of way review committee on 22 June 2004, establishing that there were problems. He said:
“A court case may well provide clarity, but if and when this might happen is equally uncertain.”
I would like to draw this bit to the Minister’s attention:
“In the longer term it would be sensible to modify the legislation to make it clearer and more helpful. However, this would require primary legislation and so could take some time.”
The vehicle is here, and I invite the Minister to jump on it.

Jim Knight: Clause 63 ensures that where there is historic evidence of use of a route by non-mechanically propelled vehicles, or a historic dedication of a carriageway at a time when horse and cart use was commonplace, that evidence may be used to record a restricted byway. A restricted byway carries a right of way on foot, a right of way on horseback or leading a horse, and a right of way for vehicles other than mechanically propelled vehicles. Thus, the type of vehicles using those routes will be very similar to those entitled to use routes dedicated for vehicular use before the era of motor vehicles. When I spoke at the AGM of the British Horse Society, it wanted an assurance on that matter, so I give it now.
The clause also deals with the repeal of section 34A of the Road Traffic Act 1988. The Government set out the rationale for not implementing section 34A in the 2003 consultation paper and in a parliamentary statement made to this House on 9 December 2003.
As for the new clause, it is important that routes that have ostensibly been used as part of the rights of way network for a long period should be reflected in local authorities’ definitive maps. Section 31 of the Highways Act 1980 ensures that where there has been a continuous period of use of 20 years, a public right of way may be recognised. However, I say to my hon. Friend the Member for Sherwood that I accept that there is some ambiguity in the way section 31 is drafted, which may benefit from clarification. I agree with my him that an application to record a right of way under section 53 of the Wildlife and Countryside Act 1981 on the basis of 20-year evidence of use may not constitute bringing the public right to use a path into question and where there is no dispute about the use of the way, that may present a problem.
The issue is technical, and I would like to consider it further with a view to returning to it in the other place. With that undertaking, I hope that my hon. Friend will withdraw his new clause.

Janet Anderson: I just want to say to the hon. Member for Sherwood that he does not need to withdraw his new clause, but he may wish to reply to the debate.

Paddy Tipping: I simply take the words of the hon. Member for Brecon and Radnorshire: we are making some progress. I will say no more.

Question put and agreed to.

Clause 63 ordered to stand part of the Bill.
Clause 64 ordered to stand part of the Bill.
Further consideration adjourned.—[Tony Cunningham.]
Adjourned accordingly at five minutes past Three o’clock till Tuesday 5 July at half-past Ten o’clock.